Mind Australia Limited T/A Mind Australia
[2023] FWCA 3120
•2 OCTOBER 2023
| [2023] FWCA 3120 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Mind Australia Limited T/A Mind Australia
(AG2023/3205)
| Health and welfare services | |
| COMMISSIONER LEE | MELBOURNE, 2 OCTOBER 2023 |
Application for variation of the Mind Australia Ltd (Victoria) Enterprise Agreement 2022 – Victoria.
On 12 September 2023, Mind Australia Limited (the Applicant) made an application pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Mind Australia Ltd (Victoria) Enterprise Agreement 2022 – Victoria. (Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Fair Work Commission on 19 January 2023 and commenced operation on 26 January 2023. The nominal expiry date of the Agreement is 19 January 2026.
The Australian Municipal, Administrative, Clerical & Services Union is covered by the Agreement.
At question 2.1 of the Applicants Form F1, the Applicant seeks to vary the Agreement to correct errors, defects or irregularities in the Agreement as follows:
(a) The definition of “standard rate” in clause 3 is amended by replacing the words “clause 1.1 of the SCHADS Award” with “clause 15.3 of the SCHADS Award”.
(b) Clause 4(b) is amended by adding the words “in Victoria” after “employees of Mind employed”.
(c) Clause 12.1(c) is amended by replacing the words “given by the employee to be Mind” with “given by the employee to Mind”.
(d) Clause 17.9(c) is deleted and replaced with the following:
“The following amounts will be paid to employees employed at their current place of work prior to 8 August 1991, in the prescribed circumstances in addition to any other amounts specified elsewhere in this Agreement. Where an employee works for more than one hour in the shade in places where the temperature is raised by artificial means and:
(i)exceeds 40 degrees Celsius but does not exceed 46 degrees Celsius – 0.05% of the standard rate per hour or part thereof; or
(ii)exceeds 46 degrees Celsius – 0.06% of the standard rate per hour or part thereof.”
(e) Clause 18.1(a) is deleted and replaced with the following:
“Superannuation legislation, including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Guarantee Charge Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation (Resolution of Complaints) Act 1993 (Cth), deals with the superannuation rights and obligations of employers and employees. Employees have the opportunity to choose their own superannuation fund. If an employee does not choose a superannuation fund, any superannuation fund nominated in the Agreement covering the employee applies.”
(f) The following words are inserted at the end of clause 20.8(d):
“This allowance will be increased by the same percentage increase applicable to the standard rate.
At question 2.2 of the Form F1, the Applicant outlined the grounds for the order sought as follows:
In or about June 2022, Mind commenced negotiations for the Agreement, being an enterprise agreement to cover Victorian-based employees performing particular classifications of work.
On 2 November 2022, the following final amendments were made to the Agreement:
(a)The correction of a typographical error in the definition of the term “standard rate” in clause 3 of the Agreement (in particular replacing the reference to clause 1.1 of the Social, Community, Home Care and Disability Services Award 2020 (SCHADS Award) with a reference to clause 15.3 of the SCHADS Award);
(b)The correction of a typographical error in clause 12.1(c) of this Agreement; and
(c)The inclusion of a new sentence at the end of clause 20.8(d) of the Agreement, which provides for the payment of a sleepover allowance, as follows: “This allowance will be increased by the same percentage increase applicable to the standard rate.” (2 November Amendments)
A hyperlink to the Agreement, incorporating the 2 November Amendments, was provided to employees on 4 November 2022.
A voting process for the Agreement was conducted between 15 and 21 November 2022. A majority of employees who participated in this process voted to approve the Agreement.
On 30 November 2022, the Agreement was signed on behalf of Mind and the Haven Foundation Ltd. However, as a result of an administrative error, an older version of the Agreement (which did not incorporate the 2 November Amendments) was signed.
On 5 December 2022, an application for approval of the Agreement was made on behalf of Mind. A copy of the Agreement, as signed on 30 November 2022, was filed as part of the approval application. Mind also filed with the approval application three replacement pages for the Agreement, correcting minor errors and referencing omissions.
On 19 January 2023, the Fair Work Commission approved the Agreement (Application by Mind Australia Limited [2023] FWCA 151). As a consequence of the matters set out in paragraphs 5 and 6 above, the version of the Agreement that was approved and published by the Fair Work Commission was not the final version of Agreement. In particular, it did not include 2 November Amendments. Further, the incorporation of replacement page 20 into the Agreement caused formatting errors in the Agreement (in particular, duplication of wording in clause 17.9(c) and the omission of text from clause 18.1(a)).
Additionally, although as indicated by the title of the Agreement, the Agreement applies only to employees whose employment is based in Victoria, by error, this is not expressly stated in clause 4(b) of the Agreement. The Agreement was negotiated with, voted on and approved by employees in Victoria only.
The Australian Municipal, Clerical, Administrative and Services Union (ASU), being the union bargaining representative for the Agreement, supports this application.
Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:
“Variation of enterprise agreements to correct or amend errors, defects or irregularities
(1)The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).
(2)The FWC may vary an enterprise agreement under subsection (1):
(a) on its own initiative; or
(b) on application by any of the following:
(i)one or more of the employers covered by the agreement;
(ii)an employee covered by the agreement;
(iii)an employee organisation covered by the agreement.
(3)If the FWC varies an enterprise agreement under subsection (1), the
variation operates from the day specified in the decision to vary the agreement.”
Further, the Explanatory Memorandum in support of the Bill provides as follows:
“772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:
· simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and
· provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.”
Considering s.218A(2)(b)(i) of the Act, the Fair Work Commission may vary an enterprise agreement on application by one or more of the employers covered by the agreement.
On 19 September 2023, parties to the Agreement were invited to advise the Commission if they wished to be heard on the matter by no later than close of business Thursday, 21 September 2023. On 19 September 2023, the Applicants representative stated:
“We confirm the Applicant has no further submissions in respect of the application and is content for the matter to be determined on the papers.”
No further correspondence was received by my Chambers.
I am satisfied that the errors outlined at [4] should be corrected by varying the Agreement. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement.
I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct the errors.
The variation will operate from 9 October 2023.
COMMISSIONER
[1] PR766724.
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